Archive for December, 2015

If you’re a patent prosecutor trying to refresh your memory on how to do an Express Mail filing this day before Christmas, you might be looking for some background noise. The Morsa v. FACEBOOK oral argument would be a great choice as it contains an interesting discussion of 101 issues. I’ll post some more comments about the oral argument later; but, here is the link for today: [Link]. The outcome of the case was a Rule 36 Judgment.

Given the perceived increase in Rule 36 judgments issued by the Federal Circuit, the large number of pending appeals at the PTAB, and the increasing importance of intellectual property to the US economy, I wonder if the Federal Circuit has taken any steps to request an additional judgeship?

January 7, 2016 Update:

The following list from the uscourts.gov site shows how the various circuits have expanded over the years:

I know there is a lot of interest among the patent bar with respect to the joinder issue in IPR’s.

The Federal Circuit heard oral argument today in Yissum Research Development Co. v. Sony Corporation. You can listen to the oral argument: [here].

During the oral argument, Judge Taranto asked about what he labeled as “panel stacking.” [Listen] I assume he is referring to matters such as Target Corp. v. Destination Maternity Corp. [Read] and Zhongshan et al. v. Nidec [Read], where the PTAB reheard and reversed three judge panels with an expanded seven judge panel and a five judge panel, respectively, despite vigorous dissents.

Judge Moore had harsh words for an advocate recently during an oral argument. It probably serves as a lesson to all advocates, even Supreme Court advocates, not to adopt too dismissive of a tone with respect to an opposing side’s position during oral argument.

Judge Moore: Stop. Don’t interrupt me. You’re going too fast and you need to divorce from this argument any more characterizations which are not welcome about like his new favorite figure, his new this. Don’t do that, Mr. **********. You’re better than that. Don’t do it. Go ahead, keep going.

If I were to rank the top three judges of the Federal Circuit least likely to endure arguments that they perceive to be rude, it would be:
1) Judge Plager